The Nine [168]
Breyer had the opportunity to put that theory into action in the two Ten Commandments cases of 2005. There, civil liberties advocates challenged, as violations of the Establishment Clause of the First Amendment, two public displays of the commandments, one in a pair of Kentucky courthouses, the other on the grounds of the Texas state capitol. Four justices (Stevens, O’Connor, Souter, and Ginsburg) rejected both states’ displays as violations of the Constitution’s separation of church and state; four others (Rehnquist, Scalia, Kennedy, and Thomas) approved both states’ displays. Only Breyer, the swing vote in both cases, saw a difference between the two: he rejected the display in the Kentucky courthouses and upheld the one in the Texas park.
Breyer’s seemingly inconsistent positions drew some ridicule, but they illustrated his pragmatic, and almost overtly political, approach to judging. In his opinion concurring in the judgment in the Texas case, Van Orden v. Perry, Breyer noted that there was “no single mechanical formula that can accurately draw the constitutional line in every case,” and he proceeded to compare the history of the displays. The Texas commandments, which are carved into a granite monument, had been donated to the state by the Fraternal Order of Eagles, a private civic (and primarily secular) organization, in 1961. (The commandments were originally posted in many places around the country to generate publicity for Cecil B. DeMille’s 1956 movie, The Ten Commandments.) Most important, Breyer argued, no one had complained about the structure, which was situated for decades among sixteen other monuments and twenty-one historical markers. Indeed, the plaintiff in the case was actually a homeless person who spent more time lingering in the park, reading the inscriptions, than most other people. “Those forty years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect,” Breyer wrote.
By contrast, the displays in the Kentucky case, McCreary County v. American Civil Liberties Union, had been placed on the walls of small courthouses by local officials, accompanied in one case by a Christian minister, in 1999 and had immediately become objects of controversy. In his opinion in the Texas case, Breyer wrote, “The short (and stormy) history of the [Kentucky] courthouse commandments’ displays demonstrates the substantially religious objectives of those who mounted them.” (For example, the display noted that the posted commandments came from the “King James Version.”)
Breyer’s controlling opinions in the cases told politicians to stop erecting provocative religious monuments, with the understanding that old ones could stay. As a political compromise, if not constitutional jurisprudence, it made total sense. O’Connor did not join Breyer in both cases; she actually voted to his left, arguing that both displays should be removed. But Breyer’s split-the-difference approach reflected her influence. So, too, did Breyer’s wish to diffuse conflict; few people might have known the Ten Commandments were in the Austin park before the lawsuit, but a Court-ordered removal would surely have turned into an ugly drama. As Breyer put it, removing uncontroversial displays like the one in Texas could “create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”
Visitors to Breyer’s chambers at the Court might assume that the rows of venerable leather-bound books in the shelves behind his desk came from his wife’s aristocratic family in Great Britain. Their home in Cambridge is full of heirlooms from the stately home of the 1st Viscount Blakenham. But the books were collected by Breyer’s late uncle Leo Roberts, an eccentric philosopher and freelance academic who haunted used-book sales. Young Stephen and his uncle